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CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLINGPAGE 177This book is protected under the Copyright Act of 1976. Uncited Source...
SCHOOLING (2002)PAGE 178CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLINGA. OVERVIEWThe focus of this chapter is on the legal i...
CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLINGPAGE 179ESTABLISHMENT CLAUSE - the first part of the First Amendment requirest...
SCHOOLING (2002)PAGE 180RELEASED TIME - a practice in the 1960s that allowed students tovoluntarily attend various religio...
CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLINGPAGE 1812. What is the role of state government?States have readily accepted t...
SCHOOLING (2002)PAGE 182b. have primary effect that neither advances nor impedes religion;c. avoid excessive governmental ...
CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLINGPAGE 183For the most part, the courts have upheld the rights of students to we...
SCHOOLING (2002)PAGE 184use materials that they have not been instructed to use as long as thosematerials have not been ba...
CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLINGPAGE 185f. the hearing is to be conducted before an impartial body. The U.S.Su...
CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLINGPAGE 185f. the hearing is to be conducted before an impartial body. The U.S.Su...
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Ch. 5 Legal Issues in American Schooling - Dr. William Allan Kritsonis

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Ch. 5 Legal Issues in American Schooling - Dr. William Allan Kritsonis

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Transcript of "Ch. 5 Legal Issues in American Schooling - Dr. William Allan Kritsonis"

  1. 1. CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLINGPAGE 177This book is protected under the Copyright Act of 1976. Uncited Sources,Violators will be prosecuted. Courtesy, National FORUM JournalsCHAPTER 5LEGAL ISSUES IN AMERICAN SCHOOLINGKEY POINTS1. The Tenth Amendment of the United States Constitution gives states theresponsibility for public education.2. State constitutions provide for public education.3. Local boards of education get their rights over education through state gov-ernments.4. Most court decisions have strongly upheld the separation of church andstate provision in the Constitution.5. The First Amendment to the United States Constitution is the key toseparation of church and state decisions.6. The only involvement of students with religion condoned by the courts hasbeen their participation in activities outside the school without schoolcredit.7. Students are protected under the First Amendment, such as freedom ofexpression, as long as this expression does not create distractions.8. Most courts have ruled that schools have a right to keep order in the schooland inspect school property such as students’ lockers.9. Most court rulings have upheld the rights of schools to impose certainprerequisites for extra-curricular activities.10. Teachers have the same basic protections as other citizens under theConstitution, but these rights may be interpreted differently.11. Schools cannot discriminate in hiring practices or termination practicesagainst teachers.Copyright © 2005William KritsonisAll Rights Reserved / Forever
  2. 2. SCHOOLING (2002)PAGE 178CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLINGA. OVERVIEWThe focus of this chapter is on the legal issues involved in public education.The legal basis of education, the U.S. Constitution, is discussed, followed bylegal issues related to students’ rights and teachers’ rights. Also discussed isthe role of religion and public education.B. KEY TERMS–DEFINITIONSCONSTITUTION - The Constitution of the United States is the foundation forour entire legal and governmental systems. Education is an issue that theConstitution does not specifically address. Since the Constitution does notdelegate powers over education to the federal government, nor prohibit suchpowers to the states, public education in this country has become a stateresponsibility.SCHOOL BOARD - Local boards of education are created by state statutes forthe purposes of administering local school districts. They are legally thegoverning body for the school district; they can act only as a body;individually, members have no power; primary responsibilities are goal settingand policy-making. The boards derive their powers from the state constitution,state statutes, and court decisions.LAWS:AGE DISCRIMINATION - passed in 1967, the Age Discrimination inEmployment Act prohibits discrimination against individuals between the agesof 40 and 70 years of age.COMMERCE CLAUSE - empowers Congress with powers to regulatecommerce. Congress uses this to justify involvement in labor/union actions.DESEGREGATION - the tearing down of the dual system of public educationbased on race in America; the principle of “separate but equal” was nullified inwhich the court said that, in regard to public schools, separate is “inherentlyunequal” and the lower courts should act “with all deliberate speed” todesegregate public schools.DISCRIMINATION - the denial of rights and privileges because of race,ethnic identification, sexual orientation, religion, age, social class, politics, ordisabilities.
  3. 3. CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLINGPAGE 179ESTABLISHMENT CLAUSE - the first part of the First Amendment requiresthat the government neither advance nor inhibit religion, in effect erecting awall between church and state.EXPULSION - this is a disciplinary action in which students are barred fromattending school for an extended period of time.FIFTH AMENDMENT - protects citizens from being deprived of life, liberty,or property and prohibits requiring an individual to testify against himself/her-self. Provides protection for teachers related to outside work.FIRST AMENDMENT - provides freedom of religion principle; basis forseparation of church and state.FOURTEENTH AMENDMENT - mandates that states may not deny equalprotection to citizens. Most widely used as basis for school litigation.FOURTH AMENDMENT - protects citizens from unwarranted search andseizure; basis for decisions regarding search and seizure of students.GENERAL WELFARE CLAUSE - allows Congress to collect taxes toprovide for the general welfare of citizens; Congress has used this as a rationalfor getting involved in education.LEMON TEST - this is a three-criteria test stemming from Supreme Courtcases, Lemon vs. Kurtzman (1971). The United States Supreme Court ruledunconstitutional a 1968 Pennsylvania statute that permitted direct financialsupport (state aid) to parochial schools. The statute authorized reimbursementto be paid directly for certain educational services provided by these schools.Eligible reimbursements were teacher salaries, textbooks, and instructionalmaterials that were used specifically for secular purposes. The three criteriaare:a. have a secular purpose;b. have a primary effect that neither advances nor inhibits religion;c. avoid excessive governmental entanglement with religion.LOCAL EDUCATION AGENCY (LEA) - local school districts. This is thebasic educational unit in all states.NINTH AMENDMENT - states that enumeration of certain rights in theConstitution does not deny other rights. Teachers and students have based theirrights related to physical appearance and privacy on this amendment.NO PASS NO PLAY - laws stating that students must meet academicprerequisites to retain eligibility for participation in extracurricular activities.Texas requires a 70% average in all classes.
  4. 4. SCHOOLING (2002)PAGE 180RELEASED TIME - a practice in the 1960s that allowed students tovoluntarily attend various religious activities during the school day. This is stillallowed as long as the activities occur off the school campus, the students’attendance is voluntary and does not receive official school credits.RIGHT TO EDUCATION - the right for students to participate in theAmerican educational system has been unquestioned for most children.However, children with disabilities and other health-related problems, as wellas those from minority populations, have not always been able to gain equalaccess to public schools.SEARCH AND SEIZURE - what is legal? What might be proper in onedistrict might be considered unconstitutional in a nearby district. What isconsidered legally proper at one time might be considered a violation ofstudent rights at a later period.SECULAR CURRICULUM - (temporal or worldly) some parents havecontested various courses and course material for their children on religiousgrounds. They have been successful in getting their children exempted fromcertain courses, such as sex education and ROTC and from specific classassignments in certain courses when alternative activities can meet courserequirements.SEPARATION OF CHURCH AND STATE - basis for this was the FirstAmendment.STATE EDUCATION AGENCY - to carry out the legislative provision of thestate relative to public education.SUSPENSION - a disciplinary action that includes removing students fromschool activities for a short period of time and is usually imposed when thestudents’ infractions do not merit expulsion. In pursuing these actions ofdisciplinary measures, the schools must assure that all requirements for dueprocess are met.TENURE - a teacher’s benefit that makes it difficult to terminate them; usuallyprovided after several years of successful teaching experience. Permanent jobstatus granted to employees following successful completion of a probationaryperiod.C. SOME PRECEDING THOUGHTS1. What is the constitutional basis for public education?The Constitution does not delegate powers over education to the U.S.government, nor prohibit such powers to states; public education inAmerica has become a state responsibility (Tenth Amendment).
  5. 5. CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLINGPAGE 1812. What is the role of state government?States have readily accepted the primary responsibility for providingpublic education to its citizens and have responded by including provisionsin their state constitutions for public school programs.3. What are school boards, and how are they involved in public education?School boards are unique governing units. They are involved in educationthrough goal setting, policy making, and administration of local schooldistricts. They derive their power from the state constitution, state statutes,and court decisions.4. What is the basic governance structure of State Departments ofEducation?5. What is the basis for separation of church and state?The First Amendment to the Constitution states that “Congress shall makeno law respecting an establishment of religion, or prohibiting the freeexercise thereof.” The Fourteenth Amendment provides that no state shall“deny to any person within its jurisdiction the equal protection of thelaws;” the Fourteenth Amendment has been used to apply the FirstAmendment provisions to education. Since 1970, the Supreme Court hasapplied a tripartite test in assessing most establishment clause claims. Towithstand scrutiny under this test, governmental action must:a. have a secular purpose;Accreditation/RecognitionTechnicalAssistanceFinance SpecialProgramsSTATE BOARD OF EDUCATIONCHIEF STATE SCHOOL OFFICERSTATE DEPARTMENT OF EDUCATION
  6. 6. SCHOOLING (2002)PAGE 182b. have primary effect that neither advances nor impedes religion;c. avoid excessive governmental entanglement with religion.Often called the Lemon Test (Lemon vs. Kurtzman, 1971).6. What has been the general trend in the court’s ruling on issues such asprayer in public schools, released time for religious activities, andreligious influences on school curriculum?The First Amendment contains two phrases dealing with religion andeducation. In Everson vs. Board of Education, the Supreme Court ruled theFirst Amendment was intended to put up a wall between church and state.In the 1960s, the Supreme Court issued two precedents–stating a decisionthat schools sponsoring daily Bible reading and daily prayer violated theEstablishment Clause of the First Amendment. The general trend has beenagainst setting aside time for religious activities in school.In West Virginia State Board of Education vs. Barnette, the court ruled thatstudents could be exempted from making statements of allegiance to thestate. Using this ruling, federal courts have concluded that studentsrefusing to stand and recite the pledge cannot be forced to do so ifparticipation violates their religious or other personal beliefs and freedomof expression.7. How did the Tinker case affect freedom of expression for students?In 1969 the court ruled that students in school and out of schools arecitizens who have the protection of the U.S. Constitution. This decision didnot give students free reign. Students have to stay within the confines ofproper school discipline. Any disruptive behavior can be banned. Freedomof expression does not extend to defamatory, inflammatory, or obsceneand vulgar expression.Summary:a. schools can make and enforce reasonable rules even if these couldencroach on freedom of expression;b. armbands, buttons, and other symbolic expressions are protected by theConstitution as long as they are not inflammatory;c. a reduction of students’ rights must be reasonable and focus on theaccomplishment of an educational objective;d. denying rights must be based on objective predictions of disruptions.8. What do the courts say about dress and grooming codes for students?
  7. 7. CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLINGPAGE 183For the most part, the courts have upheld the rights of students to wearwhatever clothing they want as long as it did not create a distraction. Theserulings are based on the Fourteenth Amendment. School officials wishing toimplement dress codes must ensure that their purpose is to preventdistractions from the educational program. Hairstyles are still left up to thelower courts. So far, the Supreme Court has not heard any appeals regardingthis issue.9. What are the important court cases dealing with desegregation ofpublic schools?a. Brown vs. Board of Education, Topeka on May 17, 1954–removed dualsystem of education;b. Griffin vs. County School Board of Prince Edward County in 1964–unconstitutional to issue vouchers to parents of white students and toclose schools in order to circumvent Brown vs. Board of Educationdecision;c. Green vs. County School Board of New Kent County in 1968–iffreedom-of-choice plans actually led to desegregated schools, theywere constitutional; if not, they were not;d. Swann vs. Charlote-Mecklenburg Board of Education in 1971–thecourt ruled on four issues:1. Using a strict mathematical ratio system to determine the numberof white and black students in an entire district was not the intentof the court.2. One-race schools can exist as long as the district can prove thatthe assignment of pupils is nondiscriminatory.3. Neighborhood schools should be abolished in order to reverse dejure segregation. (De jure here means an intentional and deliberateseparation of students on the basis of race or ethnic origin.)4. Bussing should be considered as a major tool with which todesegregate schools.10. How do teachers’ rights differ from the rights of other citizens?Teachers, like all citizens, enjoy the protection of the First Amendment forfreedom of speech. However, in some cases, the freedom of speechenjoyed by teachers is somewhat restricted. On personal appearance forteachers, the courts have occasionally ruled against dress codes forteachers, citing that it violates freedom of expression, but in most cases ithas upheld dress codes for teachers. On Academic Freedom, teachers can
  8. 8. SCHOOLING (2002)PAGE 184use materials that they have not been instructed to use as long as thosematerials have not been barred. Academic freedom includes the rights ofthe professor, teacher, or speaker and the rights of the learner or listener topursue knowledge without external restrictions that would inhibit freeinquiry. Teachers can use simulation methods. Teachers have the samerights as students and citizens as guaranteed by the U.S. Constitution.Although the courts have taken personal liberties of teachers intoconsideration when determining freedom of speech, they frequently havecited the interest of the public as having priority over these individualliberties.11. What facts are necessary to show age or racial discrimination inhiring practices?a. the person belongs to a special minority group;b. the person applied for and was qualified for the position;c. the person was rejected in spite of his/her qualifications;d. the position remained open and the employer sought other applicants.12. For what reasons can tenured teachers be dismissed?a. incompetence;b. immorality;c. insubordination;d. unprofessional conduct;e. neglect of duty;f. unfitness to teach;g. need to reduce professional staff.Tenured personnel may be dismissed for cause. School boards andinstitutions of higher education are required to state specific reasons fordismissal and grant a hearing.13. What are the due process rules for dismissing a teacher?a. the teacher must be given timely, detailed, written notice of the charges;b. the teacher must be accorded a hearing and sufficient time to prepare;c. the teacher has a right to be represented by legal counsel;d. the teacher may present written and oral evidence, including witnesses;e. the teacher may cross-examine witnesses and challenge evidence;
  9. 9. CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLINGPAGE 185f. the hearing is to be conducted before an impartial body. The U.S.Supreme Court has ruled (in Hortonville District vs. HortonvilleEducation Association) that, under the U.S. Constitution, a schoolboard may be that impartial body unless bias can be proven.Source: See Hortonville District vs. Hortonville Education Association, 426 U.S. 482 (1976); Bernard,J.M. (1994 April). Ethical and legal dimensions of supervision. ERIC Digest, pp. 1-4.Accessible on the Internet via ERIC at www.ed.gov. Adapted with special permission.D. DISCUSSION QUESTIONS AND EXERCISES–NoneE. REVIEW ITEMSTrue-False1. The foundation for our legal system is the United States Constitution.2. The PARC court case focused on racial desegregation.3. The U.S. Constitution specifically addresses education.4. Teachers’ rights are exactly the same as personal rights of other citizens.5. It is very difficult to prove racial discrimination in hiring/terminatingteachers.Multiple Choice1. The Amendment to the U.S. Constitution which gives states the right todeal with issues not mentioned in the Constitution is _______.a. Fifth b. Tenth c. Fourteenth d. Eighteenthe. none of the above2. Generally, schools are allowed to search a locker if _______.a. lockers are not locked with personal locksb. there is reasonable suspicion c. the student is presentd. the student gives permission3. The Barnette decision dealt with _______.a. freedom of expression b. student grades c. teachers’ rightsd. termination policies
  10. 10. CHAPTER 5–LEGAL ISSUES IN AMERICAN SCHOOLINGPAGE 185f. the hearing is to be conducted before an impartial body. The U.S.Supreme Court has ruled (in Hortonville District vs. HortonvilleEducation Association) that, under the U.S. Constitution, a schoolboard may be that impartial body unless bias can be proven.Source: See Hortonville District vs. Hortonville Education Association, 426 U.S. 482 (1976); Bernard,J.M. (1994 April). Ethical and legal dimensions of supervision. ERIC Digest, pp. 1-4.Accessible on the Internet via ERIC at www.ed.gov. Adapted with special permission.D. DISCUSSION QUESTIONS AND EXERCISES–NoneE. REVIEW ITEMSTrue-False1. The foundation for our legal system is the United States Constitution.2. The PARC court case focused on racial desegregation.3. The U.S. Constitution specifically addresses education.4. Teachers’ rights are exactly the same as personal rights of other citizens.5. It is very difficult to prove racial discrimination in hiring/terminatingteachers.Multiple Choice1. The Amendment to the U.S. Constitution which gives states the right todeal with issues not mentioned in the Constitution is _______.a. Fifth b. Tenth c. Fourteenth d. Eighteenthe. none of the above2. Generally, schools are allowed to search a locker if _______.a. lockers are not locked with personal locksb. there is reasonable suspicion c. the student is presentd. the student gives permission3. The Barnette decision dealt with _______.a. freedom of expression b. student grades c. teachers’ rightsd. termination policies

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